Unless you’re in the legal field, you’ve probably never heard the relatively obscure term, “heart-balm.” Back in the 1930s, a trend developed as many states enacted heart-balm statutes to create a claim against third parties who engaged in affairs with a married partner.

Today, heart-balm actions are still allowed in only nine states. North Carolina, where we exclusively practice at Warren Family Law, is one of those nine. These types of lawsuits are meant to provide cause of action against a person who pursued an affair with a married person; in a heart-balm suit, a person is able to sue his or her spouse’s lover for monetary damages under a pair of statutes called alienation of affection—a subject we’ve written about here on the Family Matters blog, and criminal conversation.

As we’ve noted before with regard to alienation of affection cases, the plaintiff spouse must prove that that the defendant (the spouse’s lover) wrongfully alienated and destroyed the genuine love and affection that served as the foundation of a previously happy marriage. Many folks might think that criminal conversation has to do with seduction, but it’s actually named for a now largely-obsolete term for sexual intercourse. Thus, in heart-balm cases that include criminal conversation, you need to prove both alienation of affection and actual intercourse took place while the marriage was intact prior to separation. Remember, alienation of affection suits can be brought against anyone who interferes with the love and affection of a marriage, even meddling in-laws.

As you can probably guess, these cases can get heated pretty quickly, since we’re talking about some of the most intimate details of people’s lives. Recently, a pair of cases brought here in North Carolina have challenged the constitutionality of heart-balm suits. Many family lawyers have wondered if these suits would meet their demise through a matter of case law, and these cases offered perhaps the greatest challenge to the legitimacy of heart-balm suits in a generation (in the 1980s, the NC Supreme Court overrode an appellate court decision aimed at abolishing these suits).

At the trial court level, a North Carolina judge delivered a verdict ruling heart-balm suits unconstitutional, thus dismissing the claims of the plaintiffs involved. In the 2014 case of Rothrock v Cooke where a heart-balm claim was dismissed as unconstitutional, but the case was not appealed. Then, in 2015, a Forsyth County Case, Malacek v Williams, achieved the same outcome. In this case, however, the plaintiffs appealed, and in a decision earlier this month, the NC Court of Appeals sided with the plaintiffs, reaffirming the legitimacy of heart-balm claims once again.

The heart of the defense’s argument in Malacek was that heart-balm suits violate the rights granted to US citizens in the First Amendment (speech, expression, and association) and the Fourteenth Amendment (due process under the law). Taking the Fourteenth Amendment point first, the appeals court agreed that the precedent gave no right to the government to regulate consensual sexual activity among adults; however, Lawrence v Texas did note an exception in the case of institutions that the law protects, such as marriage.

With regard to free exercise of speech, expression, and association, the appeals court simply noted that there were many other ways that the defendant could have associated with the plaintiff’s wife without incurring tort liability under heart-balm statutes.

It will certainly be interesting to see if this case makes its way to the NC Supreme Court, especially in light of the appellate court’s notes that heart-balm suits were born in an era of misogyny and exist for family lawyers to use as leverage in divorce cases.

At Warren Family Law, we routinely counsel spouses who are looking to assert their rights in cases where adultery ruins their marriages. If you have questions about alienation of affection, criminal conversation, or any other topic discussed on this blog, please contact us to get the answers you need and move forward with your life.